Nash v. Ottawa-Carleton District School Board, 2012 HRTO 2299

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Nash

Applicant

-and-

Ottawa-Carleton District School Board and Barry Armstrong

Respondents

INTERIM DECISION

Adjudicator: Brian Cook
Date: December 6, 2012
Citation: 2012 HRTO 2299
Indexed as: Nash v. Ottawa-Carleton District School Board

APPEARANCES

Lisa Nash, Applicant

Melynda Layton, Counsel

Ottawa-Carlton District School Board and Barry Armstrong, Respondents

Roger Mills, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2This Interim Decision deals with the respondent’s submission that the Application should be dismissed because a grievance proceeding has appropriately dealt with the substance of the Application and that to proceed would result in an abuse of process.

3The applicant submits that since the grievance was withdrawn, the Application should not be dismissed.

Background

4The applicant is employed as a teacher by the respondent school board. She has a neck condition which results in chronic pain and physical restriction. This condition started in 2002 and occasionally flares up with episodes of acute increased pain and physical restriction.

5The Application concerns a flare-up in 2008 and the events after that flare-up and in particular, allegations that the respondents did not appropriately accommodate the applicant.

6The Application was filed in November 2009. The parties indicated that the applicant had filed a grievance that was still in progress. In Interim Decision 2010 HRTO 1387 and in accordance with the Tribunal’s usual practice, the Tribunal deferred further consideration of the Application until the grievance proceeding was completed.

7In December 2011, the applicant advised that she had withdrawn the grievance. The Application was reactivated in Interim Decision 2012 HRTO 216.

8The applicant submitted a Request for Order During Proceedings seeking to amend the Application to include events that have occurred since the Application was filed. The respondents filed a Request for Order During Proceedings asking the Tribunal to dismiss the Application because of the grievance procedure.

9The Tribunal scheduled a telephone conference call to hear submissions on these issues. The conference call took place on October 9, 2012.

The grievance procedure

10The grievance was considered by Arbitrator Paula Knopf on January 4, November 3, and November 4, 2011. The Arbitrator issued a Decision on November 7, 2011.

11The Decision indicates that the remedies requested in the grievance included:

A declaration of a violation of the Collective Agreement and the Human Rights Code for the Employer’s failure to provide adequate and timely accommodation of the Grievor’s disability.

12The Decision indicates that on January 4, 2011, there were some discussions between the parties which did not resolve matters and that the hearing reconvened on November 3, 2011. On that day, after opening statements, the parties authorized the Arbitrator to facilitate settlement discussions in a mediation/arbitration process. According to the Decision, this process resulted in “an agreement in principle”. The Decision stated:

That agreement would have resolved all the issues arising out of the grievance, covered the whole of the 2009-2010 school year and allowed the Grievor to pursue any aspect(s) of her claim that lay outside of the grievance in any other tribunal that she wished.

13The arbitration hearing continued the next day. According to the Decision:

At this time the Grievor instructed the Union that she did not wish to settle the case on the terms offered to her the day before, that she no longer wanted to participate in the arbitration process and instructed the Union to withdraw the grievance.

14The employer “vigorously objected” to the withdrawal. It argued that the grievance should be dismissed on a “with prejudice” basis. The employer also argued that withdrawal of the grievance should be considered an abuse of the Arbitration process. According to the Decision, the employer asserted that the reason for the withdrawal was that the applicant wished to pursue this Application with this Tribunal. The employer told the Arbitrator this was not appropriate because the issues should be dealt with in a grievance proceeding.

15The Arbitrator spoke to the applicant/grievor about the consequences of withdrawing the grievance in favour of pursuing this Application. The Arbitrator was satisfied that the applicant/grievor understood the implications of withdrawing.

16The union submitted to the Arbitrator that the grievance should be dismissed on a “without prejudice” basis, and that there should be no finding of abuse of process “because any employee has the right to access the Human Rights Tribunal of Ontario to assert a claim of discrimination.”

17The Arbitrator found there was not an abuse of process. The parties had engaged in the process in good faith and there was “simply no evidence… of any intention to waste time, to frustrate any process or to engage in fruitless litigation.” She noted that while she had jurisdiction over the issues raised in the grievance, “the Human Rights Tribunal of Ontario does have concurrent jurisdiction over those allegations.” She noted that while she had received documents into evidence, she had heard no testimony from any witness, no one had been cross-examined and there had been no consideration of the merits.

18The Arbitrator found that it was necessary to dismiss the grievance on a “with prejudice” basis “because it would be an abuse of process to attempt to reconvene this arbitration in light of everything that has happened.”

[Section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

The inter-relationship between grievances and Applications

19Under the Code, a unionized employee who believes her Code-protected, employment-related rights have been infringed has a choice. The employee may file a grievance or file an Application with the Tribunal. Nothing prevents an employee from filing a grievance and filing an Application, as the applicant in this case did. This was not the case under the pre-2008 Code which allowed the Commission to dismiss an application if the Commission was of the view that the matter could be appropriately dealt with through the grievance procedure. Under the current Code, an Application can be dismissed pursuant to section 45.1 if the substance of the Application has been appropriately dealt with. It cannot be dismissed because it could be appropriately dealt with through the grievance procedure.

20However, when an Application is filed when there is also a grievance procedure underway, the Tribunal’s general practice is to defer further consideration of the Application. This was done in the present case in Interim Decision 2010 HRTO 1387. At paragraph 8, of the Interim Decision, the Tribunal stated:

[I]f the applicant believes, on conclusion of the [grievance] process that her human rights issues have not been adequately addressed, she may ask to have [her] Application brought back on before the Tribunal.

21When considering a request to reactivate a deferred Application, the Tribunal will first consider whether the grievance procedure has appropriately dealt with the substance of the Application. If it has, the Application will be dismissed pursuant to section 45.1 of the Code. Another consideration will be whether the grievance procedure has actually been completed. If the grievance procedure is in fact ongoing, the Tribunal will generally not re-activate the Application. However, the Tribunal has occasionally reactivated an Application or not deferred the Application even though the grievance procedure was ongoing, on the grounds that the grievance procedure was not proceeding in a timely manner. As the Tribunal noted in Melville v. Toronto (City), 2012 HRTO 22:

The Tribunal has refused to defer where a grievance process was not moving forward in a timely manner: see Monck v. Ford Motor Company of Canada, 2009 HRTO 861 and Gomez v. Grand River Foods, 2011 HRTO 2106. It is also, in my view, open to an applicant whose case has been deferred to file a Request for Order During Proceedings requesting reactivation on the basis that a grievance process has been unreasonably slow or to ask for reactivation on the basis that the grievor has withdrawn or attempted to withdraw the grievance entirely.

22An important distinction between a grievance proceeding and an Application at this Tribunal is that in an Application the applicant has control over the proceeding in terms of deciding what to put in issue, what evidence to call and whether to settle. In a grievance proceeding, that control rests with the union, subject to its duty to fairly represent the grievor and/or specific terms of the collective agreement.

23For this reason and because the outcome of a grievance proceeding is rarely clear from the outset, a unionized employee may file an Application while there is a concurrent grievance underway so as to ensure that the human rights issues can be dealt with at the Tribunal if they are not dealt with in the grievance.

24To summarize, if the grievance is withdrawn at some time prior to the start of arbitration, the Tribunal will generally reactivate the Application if a timely request to reactivate is received. If the grievance has proceeded to arbitration, and if the arbitrator has dealt with the substance of the Application, the Application will generally be dismissed pursuant to section 45.1. The Tribunal may also reactivate an Application if it is satisfied that the arbitration process is unduly delayed.

25This case falls between these situations. Here, the grievance was withdrawn after the arbitration hearing had commenced and before it was completed. The request to reactivate is not made on the basis that the process was unduly delayed. The basis for the request was that the applicant wanted to abandon the arbitration process in favour or continuing the Application.

Should the Application be dismissed under section 45.1?

26Section 45.1 of the Code reads as follows:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

27The language of section 45.1 of the Code is similar to section 27(1)(f) of the British Columbia Human Rights Code, RSBC 1996, c 210. That provision has been considered by the Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”). In that case, an injured worker had made Code-related arguments in support of his claim for benefits from the British Columbia Workers’ Compensation Board. He had then raised similar arguments in an application to the BC Human Rights Tribunal.

28The Court indicated (at paragraph 22): “The question then arises: when two bodies share jurisdiction over human rights, what ought to guide the Tribunal under s. 27(1)(f) in deciding when to dismiss all or part of a complaint that has already been decided by the other tribunal?”

29Abella, J., writing for the Court majority, reviewed the applicable legal principles and concluded (at paragraphs 37 and 38):

Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.

What I do not see s. 27(1)(f) as representing is a statutory invitation either to “judicially review” another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate.

30This Tribunal has considered Figliola as it applies to the Ontario Code, and in particular how it applies when an employee has pursued a grievance proceeding before an Arbitrator and then sought to raise the same or substantially similar issues at this Tribunal. In Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, the Tribunal Associate Chair said (at paragraph 21):

In my view, the analysis adopted in Figliola applies to the interpretation of s. 45.1 of the Code, and mandates that an application be dismissed if another proceeding has determined the issues raised in the application. This Tribunal cannot, under s. 45.1, decide to proceed with an application based on a review of the process or substance of the other proceeding. Applicants must raise such issues in a judicial review or appeal of the other proceeding.

31This same approach has been consistently followed in subsequent decisions of this Tribunal. The Tribunal has found that section 45.1 applies to an arbitration proceeding where the underlying issues in the arbitration and the Application are the same, even if the Code issues were not directly raised or ruled on by the arbitrator: Howell v. National Steel Car Limited, 2012 HRTO 1589. It is also clear that a settlement of a grievance is a “proceeding” within the meaning of section 45.1: Dunn v. Sault Ste. Marie (City), 2008 HRTO 149.

32The respondents submit that the Application should be dismissed because the applicant had a full opportunity to argue all of the issues in the Application before an Arbitrator who had full jurisdiction to deal with those issues. The respondent argues that application of the analysis in Figliola means that the Application should be dismissed under section 45.1. The respondents further argue that the Tribunal has accepted that withdrawal of a grievance could be a form of settlement which can be a reason for finding that section 45.1 applies: Chris-Ann Bradshaw v. Complex Services Inc., 2010 HRTO 1215

33The applicant submits that the Application should not be dismissed. She argues that it cannot be said that the Arbitrator appropriately dealt with the substance of the Application because the Arbitrator was clear that she had made no consideration of the merits of the case before her.

34On this issue, I agree with the applicant that it cannot be said that the Arbitrator appropriately dealt with the substance of the Application because the Arbitrator clearly did not consider the substance of the Application except to the extent that she assisted the parties with settlement discussions.

35This is not a case where the applicant is attempting to re-litigate an issue that has been decided in another forum because there was no decision in the other forum, either on the human rights issues or any other issue. The grievance was not withdrawn as part of a settlement of any of the issues before the Arbitrator. I am therefore satisfied that the analysis in Figliola is not applicable to the circumstances of this case and that the Application cannot be dismissed under section 45.1

Abuse of process

36The Supreme Court of Canada discussed the doctrine of abuse of process in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.). Arbour J. stated (at paragraph 37):

In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.

…Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

37In Waterloo (City) v. Wolfraim, 2007 ONCA 732, the Ontario Court of Appeal described the doctrine of abuse of process in the following terms:

Overall, the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedures in a way that would be manifestly unfair to a party in the litigation or would in some way bring the administration of justice into disrepute.

38The question thus becomes whether allowing the applicant to proceed after she withdrew from an arbitration process that was underway results in manifest unfairness or violates principles such as judicial (or tribunal) economy, consistency, finality or otherwise undermines the integrity of the administration of justice or brings the administration of justice into disrepute.

39The arbitration process consisted of one day of settlement discussions followed by a second day during which the Arbitrator heard opening statements and admitted documents into evidence, followed by further settlement discussions. There was neither a finding on the merits by the Arbitrator or a settlement of the grievance agreed to by the parties. Instead, there were settlement discussions facilitated by the Arbitrator which did not lead to a settlement. The parties to the arbitration, including the Arbitrator, understood that the applicant wished to withdraw the grievance in order to pursue the Application at this Tribunal, which had been deferred. The applicant advised the parties and the Arbitrator that she wished to do this because she felt that she needed more control over the outcome than she had in the Arbitration process.

40At this Tribunal, the applicant filed an Application which was deferred because there was an ongoing grievance procedure. It was then re-activated when the Tribunal was advised that the grievance had been withdrawn.

41The Arbitrator dismissed the grievance on a “with prejudice” basis. The Arbitrator explained that this was necessary because a later attempt by the applicant/grievor to re-instigate the grievance would be an abuse of the arbitration process. While the Arbitrator was concerned about a potential future abuse of process, she was satisfied that the withdrawal of the grievance did not constitute an abuse of the arbitration process.

42These events have arguably resulted in some unfairness to the respondents. This arises because they had engaged in the arbitration process, including retaining an arbitrator and preparation for the process. I note that the respondents do not allege that actual or substantive prejudice or unfairness would result if the Application at this Tribunal proceeds in the face of the applicant’s withdrawal from the arbitration process.

43For the applicant, there would be clear prejudice if she were not permitted to proceed with the Tribunal process. It seems clear that at the time she made the decision to withdraw from the arbitration process, the applicant believed that she had an option to reactivate her Application at this Tribunal. This appears to have also been the understanding of the parties and the Arbitrator. Each appears to have clearly understood that the applicant wanted to withdraw the grievance to pursue the Application instead. As noted, the Tribunal’s Interim Decision had advised the applicant that if “on conclusion of the grievance process” the applicant felt that her human rights issues had not been adequately addressed, she could ask to have the Application brought back on.

44In considering the unfairness and potential unfairness to each party, I find that it cannot be said that allowing the Application to proceed would result in manifest unfairness.

45The remaining question is whether allowing the Application to proceed would violate principles such as judicial (or tribunal) economy, consistency, finality or otherwise undermines the integrity of the administration of justice or brings the administration of justice into disrepute.

46It is clear that the litigation before the Arbitrator had commenced. In addition to settlement discussions, the Arbitrator had entered documents into evidence, and heard opening statements and submissions. She had not heard any evidence from any of the witnesses. In essence, what happened was that the Arbitrator engaged with the parties in trying to facilitate a settlement of the grievance. It appears that the first day of hearing was devoted entirely to settlement discussions. On the second day, the arbitrator appears to have started the hearing process with opening statements and accepting documents into evidence. The parties then agreed to again engage in settlement discussions. The applicant thought about the settlement overnight and decided that she did not want to accept it and that she wished to withdraw the grievance. The Arbitrator heard the employer’s objections and the argument that withdrawal of the grievance was an abuse of the arbitration process. The Arbitrator was satisfied that there was no abuse of the arbitration process.

47I agree with the respondents that there could be circumstances where abandonment of a grievance proceeding before an Arbitrator could result in an abuse of process at this Tribunal. However, I am not satisfied that this is such a case.

48There was clearly no finality in the arbitration process and no concerns could arise about inconsistency or misuse of tribunal resources. While the events have understandably resulted in some frustration on the part of the respondent, I cannot conclude that permitting the applicant to reactivate the Application that she filed with the Tribunal would undermine the integrity of the administration of justice or bring the administration of justice into disrepute.

ORDER

49The applicant is permitted to continue the Application.

50The applicant’s request to amend the Application to include the incidents described in the applicant’s Request for Order During Proceedings of March 15, 2012 is granted.